Arguments in a labor union case going back eight years are still reverberating through the hallways of the Legislature. Conservative lawmakers are seeking answers on delays in a state investigation over a United Farm Worker (UFW) election, calling it a symptom of a much larger problem for the understaffed agency.
Republican Senator Shannon Grove of Bakersfield barraged Julia Montgomery, the general counsel of the Agricultural Labor Relations Board, during a confirmation hearing last week for reappointing her to the position.
“A lot of things happened in that case that did not seem right for the government to interfere the way they did,” said Grove, during the Senate Rules Committee hearing. “It appeared—and in some cases was proven—that there was not colluding, but working together with the UFW in order to ensure that these employees retain their union status, even though the employees overwhelmingly—I think six-to-one—voted not to retain it.”
Grove’s argument stemmed from a 2013 union vote at Gerawan Farming, a third-generation stone fruit grower-packer operation in Fresno. Gerawan worker Sylvia Lopez had gathered signatures to vote out the UFW in the election. The ALRB and the Department of Industrial Relations (DIR), which oversaw the election, threw out the first round of signatures but approved the next.
Workers voted out the UFW by an overwhelming majority, with 1,098 against the union and just 197 in favor—one of the largest decertification elections in state history.
Yet that tally was not made public until 2018. The ALRB impounded the ballots while legal challenges from both UFW and Gerawan Farming played out in court. UFW was charging Gerawan with multiple counts of company wrongdoing in interfering with the election, though the court eventually threw out the case.
Grove claimed that state officials threatened to destroy the ballots, though Montgomery, who was first appointed as the ALRB general counsel in 2016 and not involved with the election, said she was not aware of any such threats and defended the impoundment as part of the standard process when there is a challenge to the validity of the election.
“I do support workers’ ability to come together and make free choices about what they want in their workplace,” said Montgomery.
Grove, who was an assemblymember when the election took place and has led an employment agency since 1993, held rallies with Lopez and the Gerawan workers at the capitol to elevate their voices in challenging the ALRB. Yet the outcome of the election remained a mystery for five years.
“Our family has consistently maintained that we will honor the results of the election, once we know the election results,” said Dan Gerawan, co-owner of Gerawan Farming, in a press release at the time.
The California Supreme Court eventually rejected a challenge by the UFW and ALRB to overturn an earlier court order that directed the ALRB to count the ballots. After the ALRB released the vote count publicly, the total legal costs for the cases added up to about $10 million, according to Grove’s estimate.
Yet the legal challenges were not over. A union worker then filed a complaint with the ALRB over unfair labor practices by the UFW, a move that delayed final ALRB actions on the election. The complaint was in response to a UFW letter threatening to picket Gerawan Farming, along with its retailers, such as grocery stores, if Gerawan did not bargain with the union. Montgomery acknowledged the ALRB case is ongoing to determine the amount for remedies specific to the election but her office is not currently prosecuting any unfair labor practices in that case. Citing social media photos and videos, Grove argued the union worker had attended a UFW barbeque the day after filing the complaint, indicating the two parties were colluding.
“It does open up the idea that you guys could keep this claim open and throw those farmworker votes out,” she said. “Is there any intent of the ALRB to continue to oppose what the farmworkers have already voted on?”
Montgomery responded that the ALRB’s intention has been to follow the court’s ruling in counting the ballots.
“During the five and a half years of your tenure, have you put anything in place like a standard operating procedure so that this does not happen to another group of farmworkers?” asked Grove.
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Montgomery explained that her role as general counsel carries the responsibility for investigating any unfair labor practices that an individual may file with the ALRB.
“Certainly, we are going to look at each case very carefully and determine whether or not the facts would substantiate a violation of the law,” said Montgomery.
Senate pro Tempore Toni Atkins, who chairs the Rules Committee and served as Assembly speaker in the wake of the ALRB election, stepped into the debate to point out that ALRB board members have the responsibility to determine the agency’s intent in its cases and make the ultimate decisions over the outcome.
Republican Sen. Patricia Bates of Laguna Niguel then asked Montgomery if her office has a “firewall” separating her decisions from those of the board.
“There is a very clear and distinct firewall between the functions of the general counsel and the functions of the board,” replied Montgomery. “We don't, in fact, jointly supervise staff.”
Yet Montgomery acknowledged her office does not follow any definitive deadlines when pursuing a complaint, “but we do endeavor to investigate cases as thoroughly and efficiently as possible.”
“I am working hard to eliminate any unnecessary delays through our process,” she said, adding that some are beyond her control, such as the fact that the agricultural workforce tends to be migratory, posing unique challenges for locating witnesses to interview.
Montgomery said that her office has improved investigation timelines during her tenure as general counsel and that the ALRB has significantly reduced its vacancy rate as well.
Bates, however, argued the delays suggests an institutional bias in the general counsel’s office that influences the final decision.
“I think your goal is to ensure that the agency has the highest level of credibility to all the stakeholders that are producing our food in the valley and beyond,” said Bates. “There's still a lot of work to be done on that front in terms of the competence.”
She feared that within the ALRB there has been “a constant push to do away with” the recent U.S. Supreme Court decision involving Cedar Point Nursery. The court upended the California Agricultural Labor Relations Act of 1975 in ruling that farmworker unions are not allowed to enter private property to recruit workers.
“That's troubling when it's hit the highest court in the land. There has to be some bias going on there,” said Bates, asserting that Montgomery should serve as the gatekeeper filtering out such bias.
Later in the hearing, Montgomery defended the relevancy of the ALRB, separating the board’s efforts from the DIR, California’s other workplace regulatory agency. She argued that because ALRB only handles farmworkers cases, it is not pulled in different directions across multiple industries.
“Our staff is well trained and has the expertise to be able to understand farmworkers issues, know the challenges they're facing, address communication barriers and other barriers that they have. They also are based in the agricultural regions throughout the state,” she said.
“We really do go the extra mile and put a large amount of our efforts into making sure that we can find workers and witnesses and get the information to people that they need, which does take a lot of work in any given case.”
The committee approved Montgomery along party lines, advancing the confirmation to the Senate floor for a final vote.
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